Orissa High Court
Lakhiram Agarwal vs C.R. Dash, Food Inspector on 4 April, 2000
Equivalent citations: 2000(I)OLR568
Author: L. Mohapatra
Bench: L. Mohapatra
JUDGMENT L. Mohapatra, J.
1. The petitioner in this revision challenges the order dated 10.12.1999 passed by the learned S.D.J.M., Bolangir. framing charge against him Under Section 16(1)(a)(i) of the Prevention of Food Adulteration Act.
2. On 26. 11.1993 the Food Inspector, Bolangir District Inspected, the shop of M/s. Amarchand Lakhiram. During inspection, the said Food Inspector suspected some food items, such as Farex Veg., Dalda (Vanaspati) and Britannia Good-Day Biscuits stored for sale, to be adulterated. He served a notice in Form VI, disclosing his intention to analyse the articles by the Public Analyst and purchased 3 packets of Farex Veg of 400 grams each manufactured by Glaxo India Ltd., 3 packets of Dalda and 15 packets of Good-Day biscuits in presence of witnesses. All the aforesaid materials were sealed and sent to Public Analyst. On 15.1.1994 the said Food Inspector received the analysis report No. 7/94 from the Local Health Authority and Chief District Medical Officer, Bolangir in respect of Farex Veg and ascertained that sample is misbranded. On the basis of such report, the Food Inspector was satisfied that the petitioner has committed the offence by storing and selling misbranded Farex Veg for human consumption and prosecution report was submitted on the basis of which the impugned order framing charge was passed.
3. The learned counsel appearing for the petitioner submits that Farex Veg is a milk cereal-based weaning food which can be given to babies after four months of age. This cereal is suitable to meet the nutritional needs of the infant and it is not marketed as a substitute of breast milk. Rather it comes within the category of 'Complementary Food' or 'Breast Milk Supplement' or 'Weaning Food'. Learned counsel further submits that a clear notice is printed on the packet of Farex Veg, "Wheat Cereal with Milk" and is not a breast milk substitute, as provided under Rule 37-B of the Prevention of Food Adulteration Rules, 1955 (for short, 'the Rules'). The said rule is applicable only to infant food marketed as breast milk substitute. Reliance is placed on a decision reported in 1995 Cri.L.J. 3053 : Nestle India Ltd. v. A.K.Chand and Anr.. It is submitted that Farex Veg being a cereal-based weaning food, is not included in the category of infant food, infant milk food or special infant food, and is not marketed as breast milk substitute and therefore, does not contravene Rule 37-B of the Rules.
4. Learned counsel appearing for the State submits that Farex Veg is marketed as a substitute of breast milk and therefore, there is clear contravention of Rule 37-B of the Rules and as such, there is no illegality in framing the charge.
5. In the aforesaid reported decision the Food Inspector had taken samples of 30 packets of Lactogen, 43 packets of Cerelac Wheat Apple and 36 packets of Farex Veg which were stored for sale. The samples were sent to the Public Analyst and the Public Analyst reported that the Cerelac Wheat Apple was misbranded, inasmuch as the picture of an infant was appearing on the label. This Court in the said judgment held that weaning food is not covered by infant milk food or special infant food marketed as breast milk substitute and accordingly there was no contravention of Rule 37-B of the Rules. The finding of the Court in the said decision is quoted below :
"11. Rules 37-A and 37-B deal with Weaning Food differently. In case the former Rule, as provided for in the Explanation, the expression 'infant food' inter alia means any food which may be used for partial or total replacement of breast milk, commonly called breast milk substitute and includes any food as a complement to breast milk, to most nutritutional needs of the infant after 4 months of age, commonly called 'complementary food', 'breast milk supplement', or 'weaning food'. Rule 37-B relates to prohibitions in respect of infant milk food, infant formula and any other special infant food marketed as breast milk substitute, and requirement of an additional statement in respect of weaning food. Definitions and standards of quality as prescribed in Rule All: 02: 1 B. A 11:13:01 deal with Infant Milk Food and Infant Formula respectively. As indicated (supra), A 11:02:18:02 deals with cereal based weaning food. For the purpose of Rule 37-A, the Explanation provides an inclusive definition of 'infant food'. It deals with an article of infant food whose standards are not prescribed in Appendix 'B'. Even in the case of Rule 37-A, the Weaning Food in order . to be encompassed must be a food which may be used for partial or total replacement of breast milk and is called breast milk substitute, as is suitable as a complement to breast milk. The word 'complement' in the context it is used means to fill up, that which is required to make up a deficiency, to make something else perfect and complete, that which fills up or completes. The food has to be a 'replacement" and 'suitable', and 'weaning food' is defined to be one. In order to attract application of Rule 37-B the food must be a special infant food marketed as breast milk substitute if it is not an infant milk food, or infant formula. 'Substitute' means to put instead of, something put in the place of, used instead of. It is clear from Section 37-B(2)(iv) that for the purpose of Rule 37-B, weaning food is not included in Infant formula. Infant Milk Food. Special Infant Food referred to in Rule 37-B( 1). The use of the expression 'in addition to mother milk' is clearly indicative of the legislative intent that weaning food for the purpose of Rule 37-B is not considered as a partial or total replacement of breast milk, commonly called breast milk substitute. Incidentally views of Directorate General of Health Services in its letter dated 14.2.1992 (Annexure-4) may be referred to, though it is really not necessary or permissible to do so. It says that Weaning Food is not covered by Infant Milk Food, Infant Formula, and other Special Infant Food marketed as breast milk substitute."
6. It further appears from the record that the learned Magistrate while framing charge observed that Farex Veg stored in the shop of the petitioner for sale was found to be adulterated by the Public Analyst. It appears from the prosecution report that the offence committed by the petitioner was storing and selling misbranded Farex Veg for human consumption and there was no allegation of adulteration. The report of the Public Analyst as indicated in the prosecution report also shows that the sample sent to the Public Analyst was found to be misbranded and there was no report that the said sample was adulterated.
7. Considering the nature of allegations and relying on the decision referred to above, I am of the view that Farex Veg is not covered by infant milk food, infant formula and other special infant food marketed as breast milk substitute and accordingly there is no contravention of Rule 37-B of the Rules.
8. The impugned complaint as well as the order, framing charge in the proceeding are quashed.